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Receiving cash from a subordinate, is this a problem? Florida

12-31-2009, 06:27 AM

My wife works for a home heath care agency as an administrator. The aids that are sent out to patients are independent contractors. While my wife doesn't usually directly staff cases with the aids, she used to do it before she became an administrator and sometimes the aids come to her saying that they are not being placed on cases as much as some other aids.

Well, my wife happened to staff a job recently and used an aid that she liked and that the other staffers had not been using. This aid just gave her a $50 Visa gift card as thanks. This is not the first time this has happened.

I suspect this is violating some sort of law, and I don't want my wife to get in any trouble if her bosses find out. Before I tell her to no longer accept these gifts (the aids are mostly Haitian and would perhaps see it as an insult to not accept the gifts), I would love to be able to reference some sort of state statute to bolster my suggestion.

This is not against any law. It may or may not be against company policy. Many companies have policies against accepting gifts, and violation of such a policy, if one exists, can be a termination offense. But the law does not take a stand on the issue of gifts.

Edited to add: I should mention that coming from management or a superior, a gift of this nature would in most cases be taxable. But coming from a subordinate, co-worker, or client, it is simply a gift and not subject to any kind of legal controls, only internal ones.

Comment

In healthcare, there are lots of laws and rules that don't fall into employment law, so they are outside the scope of this board. This falls under healthcare compliance.

Unless this was a truly innocent gift, it was unethical, and in some cases could be illegal. Healthcare organizations should avoid kickbacks and anything that could even be perceived as a kickback/inducement. Cash gifts and cash-equivalents (like gift cards) are especially suspect.

Even though it might look like the aides are subordinates to your wife, it will more likely be seen as your wife being a "broker" engaging the services of these independent contractors. ICs offering inducements to a "broker" in order to get more jobs would be unethical, and in some cases illegal.

Home health is under intense scrutiny by the federal HHS OIG. Any company that takes in funds through Medicare or Medicaid (unless you are strictly serving wealthy out-of-pocket clients or just one or two private insurance companies, this likely applies to you) needs to adhere to CMS regs, plus comply with all laws that apply to healthcare compliance. For example the Stark law governs anything that might appear to be a bribe or kickback to physicians, but most healthcare organizations are encouraged to apply it across the board to non-physicians.

Your wife should contact the Compliance Officer for her company about what to do when a nurse or aide offers a gift. The CO can investigate. It may turn out that it was an innocent gift or expression of appreciation, or it might actually be an attempt at an inducement. Either way, the aide and your wife will be educated about what is and isn't legal, and how to prevent even the appearance of an inducement.

If the company does not have a Compliance Officer or compliance program, they'd better set this as a goal for 2010. The board of directors need to peruse the examples of OIG investigations, exclusions, and reports to see the importance of having a compliance program. The actual gift discussed here may not be the actual problem, but a symptom of a bigger problem of not having a vigorous compliance program.

Comment

In healthcare, there are lots of laws and rules that don't fall into employment law, so they are outside the scope of this board. This falls under healthcare compliance.

Unless this was a truly innocent gift, it was unethical, and in some cases could be illegal. Healthcare organizations should avoid kickbacks and anything that could even be perceived as a kickback/inducement. Cash gifts and cash-equivalents (like gift cards) are especially suspect.

Home health is under intense scrutiny by the federal HHS OIG. Any company that takes in funds through Medicare or Medicaid (unless you are strictly serving wealthy out-of-pocket clients or just one or two private insurance companies, this likely applies to you) needs to adhere to CMS regs, plus comply with all laws that apply to healthcare compliance. For example the Stark law governs anything that might appear to be a bribe or kickback to physicians, but most healthcare organizations are encouraged to apply it across the board to non-physicians.

Your wife should contact the Compliance Officer for her company about what to do when a nurse or aide offers a gift. The CO can investigate. It may turn out that it was an innocent gift or expression of appreciation, or it might actually be an attempt at an inducement. Either way, the aide and your wife will be educated about what is and isn't legal, and how to prevent even the appearance of an inducement.

If the company does not have a Compliance Officer or compliance program, they'd better set this as a goal for 2010. The board of directors need to peruse the examples of OIG investigations, exclusions, and reports to see the importance of having a compliance program.

Comment

Because of the potential problems involved, I would advise your wife not to accept any additional gifts. The other posters have provided enough info to show there is a potential ethical problem. I personally see the ethical problem as a little stronger anytime a person doing scheduling is receiving a gifts from persons being scheduled. It really appears to be a kickback in return for getting the assignment and could easily grow into being exactly that.

And, based on a few persons I know of Haitian extract, I think that they may feel the "gift" is a requirement if they wish to receive future assignments.

Please post questions on the forum rather than sending me a private message or email. That way others who have similar issues have access to the discussion.

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